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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Tuesday, July 16, 2019 4:42:51 PM
CASE NUMBER: 2015 CV 00730 Docket ID: 33616857
MIKE FOLEY
CLERK OF COURTS MONTGOMERY COUNTY OHIO
MONTGOMERY COUNTY COMMON PLEAS COURT
MONTGOMERY COUNTY, OHIO
BARBARA E. SCHNEIDER, : CASE NO: 2015 CV 00730
Administrator of the Estate of Klonda S. :
Richey, Deceased, :
: JUDGE: MARY WISEMAN
Plaintiff, :
vs. :
: PLAINTIFF’S MEMORANDUM IN
MARK KUMPF, Director of Montgomery : OPPOSITION TO DEFENDANTS’
County Animal Resource Center and : MOTION TO STRIKE HEARSAY
Montgomery County Dog Warden, in His : EVIDENCE SUBMITTED BY
Individual Capacity Only : PLAINTIFFS IN OPPOSITION TO
: DEFENDANTS MOTION FOR
Defendant, : SUMMARY JUDGMENT
and :
:
BOARD OF COUNTY :
COMMISSIONERS OF MONTGOMERY :
COUNTY, OHIO :
:
Defendant. :
Defendants’ Motion to Strike Hearsay Evidence [Doc. ID 33570960] (“Br.”) seeks to strike
certain exhibits that were submitted in support of Plaintiff’s Memorandum in Opposition to
Defendants’ Motion for Summary Judgment. More specifically, Defendants challenge the
Affidavit of Todd B. Naylor [Doc. ID 33502455] (“Naylor MSJ Affidavit”) as being “not much
more than an affidavit attempting to incorporate reams of inadmissible records.” Br. at 1. 1
While Defendants argue that many of the documents attached to the Naylor MSJ Affidavit
should be stricken on evidentiary grounds, their cursory moving papers do not provide much detail
regarding the nature of their objections or explain how those objections apply to specific exhibits.
1
Civ.R. 56(C) provides that summary judgment is appropriate only if the “pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations” show that there is no
genuine issue of material fact.Documents that do not fall within one of the categories listed in Civ.R. 56(C) may be
introduced as evidence when incorporated by reference by an affidavitpursuant to Civ.R. 56(E). Accordingly,
Plaintiff properly submitted the Naylor MSJ Affidavit as a means for introducing probative evidence in opposition to
Defendants’ pending motion for summary judgment.
That being said, Defendants’ challenges largely fall into two categories: authentication and
hearsay. Neither is persuasive.
Because of the nature of the suit, virtually all relevant evidence in this case consists of
statements/admissions made by Defendant Mark Kumpf (or his agents at ARC), business records
produced by Defendants through discovery, and public records produced through public record
requests. Such records are authenticated and admissible under the Rules of Evidence. See, e.g.,
Stumpff v. Harris, 2nd Dist. No. 26214, 2015-Ohio-1329, 31 N.E.3d 164, ¶ 35 (“Numerous courts,
both state and federal, have held that items produced in discovery are implicitly authenticated by
the act of production by the opposing party.”); Hubbard v. Defiance, 3rd Dist. Defiance Nos. 4-
12-12-22, 4-12-23, 2013-Ohio-2144, ¶36 (finding trial court abused its discretion by striking
public records and other documents produced in discovery, finding the defendant city’s
authentication challenge to be “disingenuous”); Evid. R. 801(2) (“Admission by party-opponent”
is not hearsay);2 Evid. R. 803(6) (hearsay exception for “Records of Regularly Conducted
Activity”);3 Evid. R. 803(8) (hearsay exception for “Public Records and Reports”). 4
2
See Evid.R. 801(D)(2) (statement excluded from hearsay rule if “offered against a party and is (a) the party's own
statement, in either an individual or a representative capacity, or (b) a statement of which the party has manifested an
adoption or belief in its truth, or (c) a statement by a person authorized by the party to make a statement concerning
the subject, or (d) a statement by the party's agent or servant concerning a matter within the scope of the agency or
employment, made during the existence of the relationship, or (e) a statement by a co-conspirator of a party during
the course and in furtherance of the conspiracy upon independent proof of the conspiracy.”).
3
See Evid.R. 803(6) (“Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation,
in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person
with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of
that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of
the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the
method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph
includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted
for profit.”)
4
See Evid.R. 803(8) (“Public Records and Reports. Records, reports, statements, or data compilations, in any form,
of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant
to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters
observed by police officers and other law enforcement personnel, unless offered by defendant, unless the sources of
information or other circumstances indicate lack of trustworthiness.”).
Defendants implicitly concede that many of the exhibits attached to the Naylor MSJ
Affidavit consist of business records, public records, and admissions of a party opponent, but
nevertheless contend that Plaintiff has the “burden to satisfy the Ohio Rules of Evidence for any
statements from third parties contained in such emails under the ‘double hearsay’ standard.” Br. at
2. However, Defendants fail to identify any specific instances where Plaintiff relies on any such
third party “double hearsay” statements in opposing summary judgment. Without this basic
information about the nature of Defendants’ objection, it is difficult for Plaintiff to frame her
response. Instead of identifying specific instances where Plaintiff relies on “double hearsay,”
Defendants merely (inaccurately) cite a Sixth Circuit case as “holding” that “business records are
potentially fraught with double hearsay.” Br. at 2 (citing Peak v. Cuboda Tractor Corp., 559 Fed.
Appx. 517, 523 (6th Cir. 2014) (affirming district court’s rejection of “double hearsay” objection
because both levels of evidence were individually covered by the business record exception of
Fed. R. Civ. P. 803(6)). While it is undoubtedly true that some business records contain double
hearsay, such a generic objection uncoupled from any specific document at issue in this case is not
a valid objection. Notably, if Plaintiff does not offer such a third-party statement “to prove the
truth of the matter asserted,” it is by definition not double hearsay. Evid.R. 801(C).
Defendants do challenge a couple dozen specific documents on various evidentiary
grounds, albeit with little to no substantive argument or authority. These challenged documents
include such plainly admissible materials as sworn affidavits notarized by Defendant Kumpf
himself, public records produced by Defendants in response to Plaintiff’s discovery requests, and
an article containing statements that Defendant Mark Kumpf has admitted he made. Because
Defendants have failed to raise a valid basis to strike any of Plaintiffs’ probative evidence,
Defendants’ motion should be denied in its entirety.
A. Defendants’ Motion to Strike Documents for Lack of Authentication Should be
Denied
As the Second District recently recognized, “The threshold standard for authenticating
evidence is low.” Stumpff v. Harris, 2nd Dist. No. 26214, 2015-Ohio-1329, 31 N.E.3d 164, ¶ 29.
Nevertheless, Defendants seek to exclude as “unauthenticated”: 1) numerous documents they
produced in response to Plaintiff’s discovery requests5; 2) a Bates-stamped public record produced
by Defendant Mark Kumpf’s former supervisor in response to a subpoena; 3) public records
provided by the Dayton Police Department in response to a public records request; 4) periodicals
containing statements Defendant Kumpf admitted to making; and 5) a report currently available
on Montgomery County’s website.
Notably, Defendants do not contend that these documents are actually unauthentic – that
is, altered or forged. Instead, Defendants seek to exclude these documents because Plaintiff
allegedly failed to properly authenticate them. However, when “[t]he origin of the documents is
not in question … nor is there a suggestion that they are anything other than what they are claimed
to be,” a court should deny a motion to strike on authentication grounds. Koch v. Ohio Acres4U
LLC, 7th Dist. No. 16 HA 0018, 2018-Ohio-2763, 115 N.E.3d 748, ¶¶ 37-38 (“Most Ohio courts
recognize a ‘low threshold standard (that) does not require conclusive proof of authenticity, but
only sufficient foundational evidence for the trier of fact to conclude that the document is what its
proponent claims it to be.’”).6
5
As a result of this Court’s intervention and following a substantial delay in proceedings, Defendants were forced to
produce thousands of responsive emails and documents in January 2019. However, by the time these documents were
received and reviewed, Plaintiff had deposed nearly all of the witnesses in this case.
Had Defendants timely responded
to Plaintiff’s March 2017 discovery requests as required by the Civil Rules, Plaintiff would have been able to discuss
these documents with witnesses at their depositions and alleviated some of Defendants’ authentication concerns.
6
See also John Soliday Fin. Group, L.L.C. v. Pittenger, 190 Ohio App.3d 145, 2010-Ohio-4861, 940 N.E.2d 1035,
¶34 (citing 1 Weissenberger, Ohio Evidence (1991) 4–5, Section 901.2; Giannelli, Ohio Evidence Manual (1990) 6,
Section 901.01)); Fowler v. Fimiani, Eleventh Dist. Lake No. 2017-L-026, 2017-Ohio-9333, ¶37, 2017 WL 6729804
(similar).
1. Documents Defendants produced in discovery
Moreover, “[n]umerous courts, both state and federal, have held that items produced in
discovery are implicitly authenticated by the act of production by the opposing party.” Stumpff,
2015-Ohio-1329, at ¶35 (citations omitted). Here, Defendants claim that Exhibits 59, 66, 68, and
71 are unauthenticated emails. Yet each email was produced by Defendants in response to
Plaintiff’s request for documents. See Naylor MSJ Affidavit at ¶¶63, 70, 72, and 75 (attesting that
each email “is a true and accurate copy … as produced by Defendants in this litigation”). See also
Diller v. Maiami Valley Hospital, 102 N.E.3d 520, 2017-Ohio-9051, ¶64 (2d Dist.) (documents
properly authenticated by affidavit from counsel stating “that they had been requested from and
provided by the opposing party during discovery”).
Defendants also attack Plaintiff’s Exhibit 54, which consists of documents Defendants
produced regarding a problem dog at 31 East Bruce Avenue in 2015. The Exhibit contains nine
pages.7 Of them, five pages are either affidavits notarized by Defendant Kumpf or a letter from
Defendant Kumpf. The remaining four pages are court records in Montgomery County Municipal
Court Case No. 2015-CVH-001654. All of these pages were properly authenticated by the Naylor
MSJ Affidavit. See Diller, 2017-Ohio-9051, ¶64.
2. Documents produced in response to a subpoena
Exhibit 6 is a public record produced by the former supervisor of Mark Kumpf, Amy
Wiedeman, in response to a subpoena directed to her and Bates-stamped as Wiedeman
subpoena000391. Production of a document in response to a subpoena carries the same implicit
7
The Exhibit contains (1) a one-page “Request to Impound Dog” form filled in and signed by ACCO Kandi Broadus
and submitted to the Montgomery County Municipal Court on behalf of the “Montgomery County Animal Resource
Center”; (2) a one-page “Order to Impound Dog” form signed by the Hon. Carl S. Henderson; (3) a two-page affidavit
signed by ACCO Broadus and notarized by Defendant Kumpf; (4) a two-page affidavit signed by complaining witness
Greta Parks and notarized by Defendant Kumpf; (5) a one-page “Notice of Dog Status Designation”; and (6) a one-
page signed letter from Defendant Kumpf to the dog’s owner “enclose[ing] copies of the related paperwork.” See
Naylor MSJ Affidavit, Exhibit 54.
authentication as production in discovery. See Stumpff, 2015-Ohio-1329, at ¶34. And again,
Defendants do not argue that there is any indication that the document is altered or forged.
3. Documents produced in response to a public records request
Exhibits 17, 29, 30, and 35 are Dayton Police Department records that were produced in
response to Plaintiff’s public records request. Pursuant to Evid. R. 901(B)(4), the records are
authenticated by their “distinctive characteristics.” They are further authenticated by the Naylor
MSJ Affidavit under Evid.R. 901(B)(7) as being “true and accurate cop[ies]” of documents
“received in response to a public records request to the Dayton Police Department.” See Naylor
MSJ Affidavit, ¶¶20, 32, 33, and 39.
4. Periodicals
Plaintiff’s Request for Admission No. 16 asked Kumpf to admit that he made all the
statements attributed to him in an article titled, “Out of Control, Into Compassion.” See Naylor
MSJ Affidavit, ¶43. Kumpf responded by stating, “Admitted.” Id. Nevertheless, Defendants
move to exclude the article, which is Exhibit 42 to the Naylor MSJ Affidavit. Although Defendants
implicitly authenticated the article by producing it in their discovery responses (Stumpff, 2015-
Ohio-1329, at ¶35), truly, whether the article is authenticated or not is irrelevant because Kumpf
admitted that he made all the statements in the article, which is substance for which it is cited by
Plaintiff.
5. Document currently on Montgomery County’s website
The final document that Defendants complain is unauthenticated is the November 2018
Report on the Animal Resource Center of Montgomery County, Dayton Ohio, completed by Team
Shelter USA, LLC and obtained from Montgomery County’s website. There is no indication that
this report is unauthentic. Under Evid.R. 201, a court may take judicial notice of an adjudicative
fact that is “not subject to reasonable dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned.” See States Res. Corp. v. Hendy, 9th
Dist. Summit No. 25423, 2011-Ohio-1900, ¶ 20 (“Public records and government documents are
generally considered ‘not to be subject to reasonable dispute.’ This includes public records and
government documents available from reliable sources on the Internet.”).
B. Defendants’ Motion to Strike Documents as Hearsay Should be Denied
Defendants argue that certain exhibits attached to the Naylor MSJ Affidavit contain
hearsay. However, Defendants fail to specify which portions of the Exhibits are objectionable and
instead object to entire exhibits (even including parts upon which Plaintiff does not rely).
Exhibit 3 is a Shelter Consultation and Evaluation for Montgomery County, Final Report
that was issued on June 22, 2004. Plaintiff cites this report – a public record that was produced by
Defendants in this case – in her brief purely as background. The report shows that while the
Montgomery County Animal Shelter had been considered to be poor in terms of animal care prior
to Mark Kumpf’s arrival, the animal control division was perceived to be performing well. Amy
Wiedeman was asked about that report in her deposition. She identified the report, recalled that
the overall assessment of the shelter was poor, but also recalled that the report’s “overall
conclusions about animal control were positive.” See Affidavit of Todd B. Naylor in Opposition
to Defendants’ Motions to Strike (“Naylor MTS Affidavit”), ¶3 (citing the Deposition of Amy
Wiedeman at 12:14-16:20). Moreover, Mark Kumpf attached a copy of this report to an email he
wrote in 2009 in which he asked his supervisors to review the report. See Naylor MTS Affidavit
at ¶4 (citing the Deposition of Mark Kumpf at 27:24-29:14). This is both a record of regularly
conducted activity and a public record. See Evid.R. 803(6) and 803(8).
Exhibit 5 is an April 8, 2013 letter from the Ohio County Dog Wardens Association to a
District One State Representative regarding the organization’s position on a pending legislative
matter. Mark Kumpf is listed at the bottom of the letter as Treasurer of the organization. The
letter specifically states that it is submitted on behalf of the executive board of the organization.
Therefore, this letter constitutes a record of regularly conducted activity under Evid.R. 803(6) and
an admission by a party pursuant to Evid.R. 801(D)(2).
Exhibit 6 is a document titled “Animal Resource Center Budget/ License Options.” It is
Bates-stamped Wiedeman subpoena000391. Clearly, this document is a public record produced
in response to subpoena and is admissible pursuant to Evid. R. 803(6) and Evid.R. 803(8).
Moreover, the document is cited simply to demonstrate that the ARC received a subsidy from
Montgomery County, a fact that should not be in dispute.
Exhibits 17, 29, 30, and 35 are public records prepared by the Dayton Police Department
titled “Calls For Service Inquiry Response” that were produced to Plaintiff in response to a public
records request. In each instance, the Calls for Service Inquiry Response reflect the date and time
of a call placed to the Dayton Police Department, the identity of the caller (including the caller’s
phone number), and a description of what the responding police officer saw and did after arriving
at the scene. See, e.g., Exhibit 17 to Naylor MSJ Affidavit. These records are admissible under
Evid.R. 803(1), 803(6), and 803(8).
Defendants also object to the Naylor MSJ Affidavit’s quotation from telephone recordings
of calls Klonda Richey made to the Dayton Police Department, as described in paragraphs 32, 33,
and 39. Attorney Naylor provided an affidavit in which he swore under oath that after defense
counsel lost all of the documents Defendants had produced in this case, Attorney Naylor had copies
made and provided those copies to defense counsel on April 1, 2019. See Naylor MSJ Affidavit,
at ¶36. Defendants attempt to challenge this testimony with an unsworn statement of counsel that
copies of the Dayton Police Department recordings were not provided to them on April 1, 2019.
Putting aside that unsworn statements of counsel cannot be used to challenge testimony,
Defendants are simply wrong. See Affidavit of Cheryl Pence (“Pence Affidavit”) at ¶¶3-4. In any
event, to eliminate any possible dispute over whether Defendants have copies of these recordings,
Plaintiff is manually filing true and accurate copies contemporaneously with this Memorandum.
See also id. at ¶5.
Klonda Richey’s statements to the Dayton Police Department are admissible for multiple
reasons. First, Evid.R. 804(5) provides that a statement of a deceased person is not excluded by
the hearsay rule where “(a) the estate or personal representative of the decedent’s estate * * * is a
party, and (b) the statement was made before the death * * *, and (c) the statement is offered to
rebut testimony by an adverse party on a matter within the knowledge of the decedent * * *.” See
also Testa v. Roberts, 44 Ohio App.3d 161, 542 N.E.2d 654 (1988) (explaining that Evid.R. 804(5)
permits a decedent to “speak from the grave” to rebut an adverse party's testimony for the benefit
of the decedent's representative). Here, Defendants repeatedly argue that only one animal control
officer ever spoke to Klonda, that Klonda wanted to be anonymous, and that there were no
witnesses that would support a dangerous dog designation. See, e.g., Affidavit of Mark Kumpf,
¶¶18, 40, 43-44. Yet Klonda told the Dayton Police Department that officers had been out “many
times,” that they had seen the dogs chained up in Nason’s yard, and that she did not want to be
anonymous See Naylor MSJ Affidavit, ¶¶32, 39. Klonda also told Dayton Police that she had
evidence of the dogs coming onto her property on a zip drive and that she had a witness to support
her. Id. at ¶33. This evidence is admissible under Evid.R. 804(5). See, e.g., Brady Fray v. Toledo
Edison Co., 6th Dist. Lucas No. L-02-1260, 2003-Ohio-3422, ¶¶ 31-32.
Klonda’s recorded statements to the police are also admissible under Evid. R. 803(1)
(present sense impression), Evid. R. 803(3) (then existing mental and emotional state), Evid.R.
803(6) (record of regularly conducted activity), and Evid. R. 803(8) (public records and reports).
See, e.g., State v. Naugler, 12th Dist. Madison No. CA2004-09-033, 2005-Ohio-6274, ¶26 (9-1-1
calls properly admitted as present sense impressions under Evid.R. 803(1)).
Exhibit 25 to the Naylor MSJ Affidavit is the deposition of Detective Thomas Cope. While
Defendants do not object to the admission of Detective Cope’s deposition transcript, they do object
to the admission of Exhibit 1 to Cope’s deposition, which is a Dayton Police Department document
titled “DIBRS,” or “Dayton Incident Based Reporting System.” See Naylor MTS Affidavit at ¶5
(citing Deposition of Detective Thomas Cope (“Cope Dep.”) at 8:24-11:17). Although Defendants
object to the entire document, the portions which are cited by Plaintiff are admissible under Evid.R.
803(6) and Evid.R. 803(8). See Muncy v. American Select Insurance Company, 129 Ohio App.
3d 1, 716 N.E. 2d 1171, 1174 (10th Dist. 1998). 8
Notably, Detective Cope testified that he created “a substantial portion” of the entries in
the document, specifically including pages 7 to 19. Cope Dep. at 10:7-11:17. His entries in the
DIBRS report describe things that he personally observed on the day of Klonda’s death (e.g., “the
dog had a collar on but did not have any tags or identification”) and things that Mark Kumpf told
him (admission of party opponent).
Exhibit 42 is the article titled, “Out of Control, Into Compassion.” Again, Kumpf admitted
to making all of the relevant statements attributed to him in the article, meaning at least those
portions are not hearsay under Evid.R. 801(D)(2). Exhibit 49 is another article which contains
statements by Kumpf that are not hearsay under Evid.R. 801(D)(2).
8
The DIBRS report was produced in response to a public record request and authenticated by Detective Cope at his
deposition. In fact, Detective Cope brought his own copy of the DIBRS report to his deposition and confirmed on
the record that the exhibit provided by Plaintiff’s counsel was “identical” to the document he obtained from the
Dayton Police Department’s reporting system. See Cope Dep. at 8:10-9:5.
Defendants object to paragraph 54 of the Naylor MSJ Affidavit as containing “hearsay
assertions and interpretations and argument concerning certain truck log records.” Br. at 3.
Notably, Defendants do not object to the truck logs themselves, but to Plaintiff’s counsel’s
description of the truck logs. But the descriptions were provided for the Court’s benefit and simply
explain why the records are significant. It is the records themselves that are the evidence, rendering
Defendant’s objection irrelevant.
Exhibits 59 and 66 are emails that constitute statements by Kumpf or his agents and are
therefore not hearsay pursuant to Evid.R. 801(D)(2). For example, Exhibit 59 consists of an email
sent from the ARC email address that discusses the operations of ARC. See Metro-Goldwyn-Mayer
Studios v. Grokster, Ltd., 454 F.Supp.2d 966, 973-74 (C.D. Cal. 2006) (emails from company
email address, emails from employees, and emails from independent contractors all admissible
under Rule 801(d)(2)(D)). Similarly, Exhibit 66 is an email from an animal control officer
discussing her investigation into a dog complaint. Exhibits 68 and 71 are also emails that are
admissible pursuant to Evid.R. 803(6) and Evid. R. 803(8).
Exhibit 76 is the 2018 Report on ARC’s operations under Mark Kumpf’s helm. While
Defendants argue it is “irrelevant and does not pertain to the time period at issue,” that is not a
legitimate basis for a motion to strike. See Foley v. City of Lowell Mass., 948 F.2d 10, 14 (1st Cir.
1991) (“Contrary to the City’s exhortation that the date an incident occurs marks the outside date
for evidence-gathering on such an issue, we think that actions taken subsequent to an event are
admissible if, and to the extent that, they provide reliable insight into the policy in force at the time
of the incident.”).
Defendants argue that the report should be stricken because it is a “hearsay publication”
and “constitutes a subsequent remedial measure.” Br. at 4. First of all, the report is a public record
pursuant to Evid.R. 803(8). See Swoope v. Osagle, 76 N.E.3d 686, 2016-Ohio-8046, ¶20 (8th Dist.)
(investigative report issued by county board into alleged neglect of disabled persons properly
admitted as public record under Evid.R. 803(8)); Coyett v. City of Philadelphia, 150 F.Supp.3d
479, 482 n.5 (“It is proper to use this report [issued by department of justice regarding defendant
city’s police training and practices] as evidence when deciding this summary judgment motion, as
it is a public record pursuant to Fed. R. Evid. 803(8)(a)(iii). Further, the use of the report as
evidence is precluded neither by Fed. R. Evid. 407 or public policy. The report is not a ‘subsequent
remedial measure’ as articulated in Rule 407.”).
Moreover, Defendants fail to explain why the portions of the report cited by Plaintiff are
“subsequent remedial measure[s].” Courts recognize that just because an investigation is
conducted after an incident does not render the resulting report a “subsequent remedial measure.”
See, e.g., Aranda v. City of McMinnville, 942 F.Supp.2d 1096, 1103 (D. Ore. 2013) (“By its very
terms, this rule is limited to measures that would have made the harm less likely to occur; it does
not extend to post-accident investigations into what did occur…. Although such reports or
inspections might represent the first or most preliminary steps that might eventually lead to
decisions to make or implement changes, they are not themselves excluded under Rule 407” (citing
Christopher Mueller & Laird Kirkpatrick, 2 FEDERAL EVIDENCE §4.50, at 77 (3d ed. 2007)). 9
Notably, although the report was prepared by Team Shelter USA, LLC at the request of
the county and although the county is a defendant in this action for purposes of Plaintiff’s public
record and spoliation claims, the county is not a defendant for purposes of the wrongful death
9
See also Prentiss & Carlisle v. Kohring-Waterous, 972 F.2d 6, 10 (1st Cir. 1992) (explaining that although post-
incident reports “may often result in remedial measures being taken (as occurred here) [Rule 407] does not mean that
evidence of the analysis may not be admitted”); Westmoreland v. CBS, 601 F.Supp. 66, 68 (S.D.N.Y. 1984) (“To
establish a rule forbidding … use [of internal investigative reports] would deprive injured claimant on of the best and
most accurate sources of evidence and information.”)
claim for which the report is relevant and being offered. See, e.g., Rivera v. Lehigh County, 2015
WL 7756193, at *8 (E.D. Pa. Dec. 2, 2015) (“There is no basis in law to preclude measures taken
by a non-party…. The admission of remedial measures by a non-party necessarily will not expose
that non-party to liability, and therefore will not discourage the non-party from taking the remedial
measures in the first place. It is noteworthy that each of the circuits to address this issue has
concluded that Rule 407 does not apply to subsequent remedial measures taken by a non-party.”);
McFarland v. Bruno Mach. Corp., 68 Ohio St.3d 305, 309 (1994) (noting that “policy
considerations behind excluding evidence of subsequent remedial conduct are not applicable when
liability is not asserted against the person taking the remedial measure”).
Moreover, even if the report could be construed as a subsequent remedial measure, it would
still be admissible for purposes other than to prove Kumpf’s negligence, such as to establish
Kumpf’s control of ARC operations, to impeach Defendants’ testimony, and to demonstrate
feasibility of reforms. See Evid.R. 407. In any event, under Evid.R. 201, a court may take judicial
notice of an adjudicative fact that is “not subject to reasonable dispute in that it is … (2) capable
of accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” See Hendy, 2011-Ohio-1900, ¶ 20 (public records posted on government websites
subject to judicial notice).
Finally, Defendants object to the history of Defendants’ failure to produce the truck logs
in this case as recounted in the Naylor MSJ Affidavit at ¶¶90, 93, 98, and 99. Each of these
paragraphs recounts statements and/or admissions by agents of Defendant Kumpf and are therefore
not hearsay pursuant to Evid.R. 801(D)(2).
CONCLUSION
For the foregoing reasons, Defendants’ motion should be denied in its entirety.
Respectfully submitted,
/s/ Todd B. Naylor
Jeffrey S. Goldenberg (0063771)
Todd B. Naylor (0068388)
GOLDENBERG SCHNEIDER, LPA
One West Fourth Street, 18th Floor
Cincinnati, Ohio 45202
Tel: (513) 345-8291
Fax: (513) 345-8294
jgoldenberg@gs-legal.com
tnaylor@gs-legal.com
David M. Gast (0070082)
Christian A. Jenkins (0070674)
MINNILLO & JENKINS CO., LPA
2712 Observatory Avenue
Cincinnati, Ohio 45208
Tel: (513) 723-1600
Fax: (513) 448-0735
dgast@minnillojenkins.com
cjenkins@minnillojenkins.com
Trial Attorneys for Plaintiff
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing was filed electronically in accordance
with this Court’s electronic filing guidelines on July 16, 2019. Notice of this filing will be sent to
all parties by operation of this Court’s electronic filing system or will be served by ordinary U.S.
mail, postage prepaid, pursuant to applicable Montgomery County Local Rules, upon counsel or
parties who are not sent electronic notification. Parties may access this filing through the Court’s
electronic filing system.
/s/Todd B. Naylor
Todd B. Naylor
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ELECTRONICALLY FILED COURT OF COMMON PLEAS Tuesday, July 16, 2019 4:42:51 PM CASE NUMBER: 2015 CV 00730 Docket ID: 33616857 MIKE FOLEY CLERK OF COURTS MONTGOMERY COUNTY OHIO MONTGOMERY COUNTY COMMON PLEAS COURT MONTGOMERY COUNTY, OHIO BARBARA E. SCHNEIDER, : CASE NO: 2015 CV 00730 Administrator of the Estate of Klonda S. : Richey, Deceased, : : JUDGE: MARY WISEMAN Plaintiff, : vs. : : PLAINTIFF’S MEMORANDUM IN MARK KUMPF, Director of Montgomery : OPPOSITION TO DEFENDANTS’ County Animal Resource Center and : MOTION TO STRIKE HEARSAY Montgomery County Dog Warden, in His : EVIDENCE SUBMITTED BY Individual Capacity Only : PLAINTIFFS IN OPPOSITION TO : DEFENDANTS MOTION FOR Defendant, : SUMMARY JUDGMENT and : : BOARD OF COUNTY : COMMISSIONERS OF MONTGOMERY : COUNTY, OHIO : : Defendant. : Defendants’ Motion to Strike Hearsay Evidence [Doc. ID 33570960] (“Br.”) seeks to strike certain exhibits that were submitted in support of Plaintiff’s Memorandum in Opposition to Defendants’ Motion for Summary Judgment. More specifically, Defendants challenge the Affidavit of Todd B. Naylor [Doc. ID 33502455] (“Naylor MSJ Affidavit”) as being “not much more than an affidavit attempting to incorporate reams of inadmissible records.” Br. at 1. 1 While Defendants argue that many of the documents attached to the Naylor MSJ Affidavit should be stricken on evidentiary grounds, their cursory moving papers do not provide much detail regarding the nature of their objections or explain how those objections apply to specific exhibits. 1 Civ.R. 56(C) provides that summary judgment is appropriate only if the “pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations” show that there is no genuine issue of material fact.Documents that do not fall within one of the categories listed in Civ.R. 56(C) may be introduced as evidence when incorporated by reference by an affidavitpursuant to Civ.R. 56(E). Accordingly, Plaintiff properly submitted the Naylor MSJ Affidavit as a means for introducing probative evidence in opposition to Defendants’ pending motion for summary judgment. That being said, Defendants’ challenges largely fall into two categories: authentication and hearsay. Neither is persuasive. Because of the nature of the suit, virtually all relevant evidence in this case consists of statements/admissions made by Defendant Mark Kumpf (or his agents at ARC), business records produced by Defendants through discovery, and public records produced through public record requests. Such records are authenticated and admissible under the Rules of Evidence. See, e.g., Stumpff v. Harris, 2nd Dist. No. 26214, 2015-Ohio-1329, 31 N.E.3d 164, ¶ 35 (“Numerous courts, both state and federal, have held that items produced in discovery are implicitly authenticated by the act of production by the opposing party.”); Hubbard v. Defiance, 3rd Dist. Defiance Nos. 4- 12-12-22, 4-12-23, 2013-Ohio-2144, ¶36 (finding trial court abused its discretion by striking public records and other documents produced in discovery, finding the defendant city’s authentication challenge to be “disingenuous”); Evid. R. 801(2) (“Admission by party-opponent” is not hearsay);2 Evid. R. 803(6) (hearsay exception for “Records of Regularly Conducted Activity”);3 Evid. R. 803(8) (hearsay exception for “Public Records and Reports”). 4 2 See Evid.R. 801(D)(2) (statement excluded from hearsay rule if “offered against a party and is (a) the party's own statement, in either an individual or a representative capacity, or (b) a statement of which the party has manifested an adoption or belief in its truth, or (c) a statement by a person authorized by the party to make a statement concerning the subject, or (d) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (e) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy upon independent proof of the conspiracy.”). 3 See Evid.R. 803(6) (“Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”) 4 See Evid.R. 803(8) (“Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, unless offered by defendant, unless the sources of information or other circumstances indicate lack of trustworthiness.”). Defendants implicitly concede that many of the exhibits attached to the Naylor MSJ Affidavit consist of business records, public records, and admissions of a party opponent, but nevertheless contend that Plaintiff has the “burden to satisfy the Ohio Rules of Evidence for any statements from third parties contained in such emails under the ‘double hearsay’ standard.” Br. at 2. However, Defendants fail to identify any specific instances where Plaintiff relies on any such third party “double hearsay” statements in opposing summary judgment. Without this basic information about the nature of Defendants’ objection, it is difficult for Plaintiff to frame her response. Instead of identifying specific instances where Plaintiff relies on “double hearsay,” Defendants merely (inaccurately) cite a Sixth Circuit case as “holding” that “business records are potentially fraught with double hearsay.” Br. at 2 (citing Peak v. Cuboda Tractor Corp., 559 Fed. Appx. 517, 523 (6th Cir. 2014) (affirming district court’s rejection of “double hearsay” objection because both levels of evidence were individually covered by the business record exception of Fed. R. Civ. P. 803(6)). While it is undoubtedly true that some business records contain double hearsay, such a generic objection uncoupled from any specific document at issue in this case is not a valid objection. Notably, if Plaintiff does not offer such a third-party statement “to prove the truth of the matter asserted,” it is by definition not double hearsay. Evid.R. 801(C). Defendants do challenge a couple dozen specific documents on various evidentiary grounds, albeit with little to no substantive argument or authority. These challenged documents include such plainly admissible materials as sworn affidavits notarized by Defendant Kumpf himself, public records produced by Defendants in response to Plaintiff’s discovery requests, and an article containing statements that Defendant Mark Kumpf has admitted he made. Because Defendants have failed to raise a valid basis to strike any of Plaintiffs’ probative evidence, Defendants’ motion should be denied in its entirety. A. Defendants’ Motion to Strike Documents for Lack of Authentication Should be Denied As the Second District recently recognized, “The threshold standard for authenticating evidence is low.” Stumpff v. Harris, 2nd Dist. No. 26214, 2015-Ohio-1329, 31 N.E.3d 164, ¶ 29. Nevertheless, Defendants seek to exclude as “unauthenticated”: 1) numerous documents they produced in response to Plaintiff’s discovery requests5; 2) a Bates-stamped public record produced by Defendant Mark Kumpf’s former supervisor in response to a subpoena; 3) public records provided by the Dayton Police Department in response to a public records request; 4) periodicals containing statements Defendant Kumpf admitted to making; and 5) a report currently available on Montgomery County’s website. Notably, Defendants do not contend that these documents are actually unauthentic – that is, altered or forged. Instead, Defendants seek to exclude these documents because Plaintiff allegedly failed to properly authenticate them. However, when “[t]he origin of the documents is not in question … nor is there a suggestion that they are anything other than what they are claimed to be,” a court should deny a motion to strike on authentication grounds. Koch v. Ohio Acres4U LLC, 7th Dist. No. 16 HA 0018, 2018-Ohio-2763, 115 N.E.3d 748, ¶¶ 37-38 (“Most Ohio courts recognize a ‘low threshold standard (that) does not require conclusive proof of authenticity, but only sufficient foundational evidence for the trier of fact to conclude that the document is what its proponent claims it to be.’”).6 5 As a result of this Court’s intervention and following a substantial delay in proceedings, Defendants were forced to produce thousands of responsive emails and documents in January 2019. However, by the time these documents were received and reviewed, Plaintiff had deposed nearly all of the witnesses in this case. Had Defendants timely responded to Plaintiff’s March 2017 discovery requests as required by the Civil Rules, Plaintiff would have been able to discuss these documents with witnesses at their depositions and alleviated some of Defendants’ authentication concerns. 6 See also John Soliday Fin. Group, L.L.C. v. Pittenger, 190 Ohio App.3d 145, 2010-Ohio-4861, 940 N.E.2d 1035, ¶34 (citing 1 Weissenberger, Ohio Evidence (1991) 4–5, Section 901.2; Giannelli, Ohio Evidence Manual (1990) 6, Section 901.01)); Fowler v. Fimiani, Eleventh Dist. Lake No. 2017-L-026, 2017-Ohio-9333, ¶37, 2017 WL 6729804 (similar). 1. Documents Defendants produced in discovery Moreover, “[n]umerous courts, both state and federal, have held that items produced in discovery are implicitly authenticated by the act of production by the opposing party.” Stumpff, 2015-Ohio-1329, at ¶35 (citations omitted). Here, Defendants claim that Exhibits 59, 66, 68, and 71 are unauthenticated emails. Yet each email was produced by Defendants in response to Plaintiff’s request for documents. See Naylor MSJ Affidavit at ¶¶63, 70, 72, and 75 (attesting that each email “is a true and accurate copy … as produced by Defendants in this litigation”). See also Diller v. Maiami Valley Hospital, 102 N.E.3d 520, 2017-Ohio-9051, ¶64 (2d Dist.) (documents properly authenticated by affidavit from counsel stating “that they had been requested from and provided by the opposing party during discovery”). Defendants also attack Plaintiff’s Exhibit 54, which consists of documents Defendants produced regarding a problem dog at 31 East Bruce Avenue in 2015. The Exhibit contains nine pages.7 Of them, five pages are either affidavits notarized by Defendant Kumpf or a letter from Defendant Kumpf. The remaining four pages are court records in Montgomery County Municipal Court Case No. 2015-CVH-001654. All of these pages were properly authenticated by the Naylor MSJ Affidavit. See Diller, 2017-Ohio-9051, ¶64. 2. Documents produced in response to a subpoena Exhibit 6 is a public record produced by the former supervisor of Mark Kumpf, Amy Wiedeman, in response to a subpoena directed to her and Bates-stamped as Wiedeman subpoena000391. Production of a document in response to a subpoena carries the same implicit 7 The Exhibit contains (1) a one-page “Request to Impound Dog” form filled in and signed by ACCO Kandi Broadus and submitted to the Montgomery County Municipal Court on behalf of the “Montgomery County Animal Resource Center”; (2) a one-page “Order to Impound Dog” form signed by the Hon. Carl S. Henderson; (3) a two-page affidavit signed by ACCO Broadus and notarized by Defendant Kumpf; (4) a two-page affidavit signed by complaining witness Greta Parks and notarized by Defendant Kumpf; (5) a one-page “Notice of Dog Status Designation”; and (6) a one- page signed letter from Defendant Kumpf to the dog’s owner “enclose[ing] copies of the related paperwork.” See Naylor MSJ Affidavit, Exhibit 54. authentication as production in discovery. See Stumpff, 2015-Ohio-1329, at ¶34. And again, Defendants do not argue that there is any indication that the document is altered or forged. 3. Documents produced in response to a public records request Exhibits 17, 29, 30, and 35 are Dayton Police Department records that were produced in response to Plaintiff’s public records request. Pursuant to Evid. R. 901(B)(4), the records are authenticated by their “distinctive characteristics.” They are further authenticated by the Naylor MSJ Affidavit under Evid.R. 901(B)(7) as being “true and accurate cop[ies]” of documents “received in response to a public records request to the Dayton Police Department.” See Naylor MSJ Affidavit, ¶¶20, 32, 33, and 39. 4. Periodicals Plaintiff’s Request for Admission No. 16 asked Kumpf to admit that he made all the statements attributed to him in an article titled, “Out of Control, Into Compassion.” See Naylor MSJ Affidavit, ¶43. Kumpf responded by stating, “Admitted.” Id. Nevertheless, Defendants move to exclude the article, which is Exhibit 42 to the Naylor MSJ Affidavit. Although Defendants implicitly authenticated the article by producing it in their discovery responses (Stumpff, 2015- Ohio-1329, at ¶35), truly, whether the article is authenticated or not is irrelevant because Kumpf admitted that he made all the statements in the article, which is substance for which it is cited by Plaintiff. 5. Document currently on Montgomery County’s website The final document that Defendants complain is unauthenticated is the November 2018 Report on the Animal Resource Center of Montgomery County, Dayton Ohio, completed by Team Shelter USA, LLC and obtained from Montgomery County’s website. There is no indication that this report is unauthentic. Under Evid.R. 201, a court may take judicial notice of an adjudicative fact that is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” See States Res. Corp. v. Hendy, 9th Dist. Summit No. 25423, 2011-Ohio-1900, ¶ 20 (“Public records and government documents are generally considered ‘not to be subject to reasonable dispute.’ This includes public records and government documents available from reliable sources on the Internet.”). B. Defendants’ Motion to Strike Documents as Hearsay Should be Denied Defendants argue that certain exhibits attached to the Naylor MSJ Affidavit contain hearsay. However, Defendants fail to specify which portions of the Exhibits are objectionable and instead object to entire exhibits (even including parts upon which Plaintiff does not rely). Exhibit 3 is a Shelter Consultation and Evaluation for Montgomery County, Final Report that was issued on June 22, 2004. Plaintiff cites this report – a public record that was produced by Defendants in this case – in her brief purely as background. The report shows that while the Montgomery County Animal Shelter had been considered to be poor in terms of animal care prior to Mark Kumpf’s arrival, the animal control division was perceived to be performing well. Amy Wiedeman was asked about that report in her deposition. She identified the report, recalled that the overall assessment of the shelter was poor, but also recalled that the report’s “overall conclusions about animal control were positive.” See Affidavit of Todd B. Naylor in Opposition to Defendants’ Motions to Strike (“Naylor MTS Affidavit”), ¶3 (citing the Deposition of Amy Wiedeman at 12:14-16:20). Moreover, Mark Kumpf attached a copy of this report to an email he wrote in 2009 in which he asked his supervisors to review the report. See Naylor MTS Affidavit at ¶4 (citing the Deposition of Mark Kumpf at 27:24-29:14). This is both a record of regularly conducted activity and a public record. See Evid.R. 803(6) and 803(8). Exhibit 5 is an April 8, 2013 letter from the Ohio County Dog Wardens Association to a District One State Representative regarding the organization’s position on a pending legislative matter. Mark Kumpf is listed at the bottom of the letter as Treasurer of the organization. The letter specifically states that it is submitted on behalf of the executive board of the organization. Therefore, this letter constitutes a record of regularly conducted activity under Evid.R. 803(6) and an admission by a party pursuant to Evid.R. 801(D)(2). Exhibit 6 is a document titled “Animal Resource Center Budget/ License Options.” It is Bates-stamped Wiedeman subpoena000391. Clearly, this document is a public record produced in response to subpoena and is admissible pursuant to Evid. R. 803(6) and Evid.R. 803(8). Moreover, the document is cited simply to demonstrate that the ARC received a subsidy from Montgomery County, a fact that should not be in dispute. Exhibits 17, 29, 30, and 35 are public records prepared by the Dayton Police Department titled “Calls For Service Inquiry Response” that were produced to Plaintiff in response to a public records request. In each instance, the Calls for Service Inquiry Response reflect the date and time of a call placed to the Dayton Police Department, the identity of the caller (including the caller’s phone number), and a description of what the responding police officer saw and did after arriving at the scene. See, e.g., Exhibit 17 to Naylor MSJ Affidavit. These records are admissible under Evid.R. 803(1), 803(6), and 803(8). Defendants also object to the Naylor MSJ Affidavit’s quotation from telephone recordings of calls Klonda Richey made to the Dayton Police Department, as described in paragraphs 32, 33, and 39. Attorney Naylor provided an affidavit in which he swore under oath that after defense counsel lost all of the documents Defendants had produced in this case, Attorney Naylor had copies made and provided those copies to defense counsel on April 1, 2019. See Naylor MSJ Affidavit, at ¶36. Defendants attempt to challenge this testimony with an unsworn statement of counsel that copies of the Dayton Police Department recordings were not provided to them on April 1, 2019. Putting aside that unsworn statements of counsel cannot be used to challenge testimony, Defendants are simply wrong. See Affidavit of Cheryl Pence (“Pence Affidavit”) at ¶¶3-4. In any event, to eliminate any possible dispute over whether Defendants have copies of these recordings, Plaintiff is manually filing true and accurate copies contemporaneously with this Memorandum. See also id. at ¶5. Klonda Richey’s statements to the Dayton Police Department are admissible for multiple reasons. First, Evid.R. 804(5) provides that a statement of a deceased person is not excluded by the hearsay rule where “(a) the estate or personal representative of the decedent’s estate * * * is a party, and (b) the statement was made before the death * * *, and (c) the statement is offered to rebut testimony by an adverse party on a matter within the knowledge of the decedent * * *.” See also Testa v. Roberts, 44 Ohio App.3d 161, 542 N.E.2d 654 (1988) (explaining that Evid.R. 804(5) permits a decedent to “speak from the grave” to rebut an adverse party's testimony for the benefit of the decedent's representative). Here, Defendants repeatedly argue that only one animal control officer ever spoke to Klonda, that Klonda wanted to be anonymous, and that there were no witnesses that would support a dangerous dog designation. See, e.g., Affidavit of Mark Kumpf, ¶¶18, 40, 43-44. Yet Klonda told the Dayton Police Department that officers had been out “many times,” that they had seen the dogs chained up in Nason’s yard, and that she did not want to be anonymous See Naylor MSJ Affidavit, ¶¶32, 39. Klonda also told Dayton Police that she had evidence of the dogs coming onto her property on a zip drive and that she had a witness to support her. Id. at ¶33. This evidence is admissible under Evid.R. 804(5). See, e.g., Brady Fray v. Toledo Edison Co., 6th Dist. Lucas No. L-02-1260, 2003-Ohio-3422, ¶¶ 31-32. Klonda’s recorded statements to the police are also admissible under Evid. R. 803(1) (present sense impression), Evid. R. 803(3) (then existing mental and emotional state), Evid.R. 803(6) (record of regularly conducted activity), and Evid. R. 803(8) (public records and reports). See, e.g., State v. Naugler, 12th Dist. Madison No. CA2004-09-033, 2005-Ohio-6274, ¶26 (9-1-1 calls properly admitted as present sense impressions under Evid.R. 803(1)). Exhibit 25 to the Naylor MSJ Affidavit is the deposition of Detective Thomas Cope. While Defendants do not object to the admission of Detective Cope’s deposition transcript, they do object to the admission of Exhibit 1 to Cope’s deposition, which is a Dayton Police Department document titled “DIBRS,” or “Dayton Incident Based Reporting System.” See Naylor MTS Affidavit at ¶5 (citing Deposition of Detective Thomas Cope (“Cope Dep.”) at 8:24-11:17). Although Defendants object to the entire document, the portions which are cited by Plaintiff are admissible under Evid.R. 803(6) and Evid.R. 803(8). See Muncy v. American Select Insurance Company, 129 Ohio App. 3d 1, 716 N.E. 2d 1171, 1174 (10th Dist. 1998). 8 Notably, Detective Cope testified that he created “a substantial portion” of the entries in the document, specifically including pages 7 to 19. Cope Dep. at 10:7-11:17. His entries in the DIBRS report describe things that he personally observed on the day of Klonda’s death (e.g., “the dog had a collar on but did not have any tags or identification”) and things that Mark Kumpf told him (admission of party opponent). Exhibit 42 is the article titled, “Out of Control, Into Compassion.” Again, Kumpf admitted to making all of the relevant statements attributed to him in the article, meaning at least those portions are not hearsay under Evid.R. 801(D)(2). Exhibit 49 is another article which contains statements by Kumpf that are not hearsay under Evid.R. 801(D)(2). 8 The DIBRS report was produced in response to a public record request and authenticated by Detective Cope at his deposition. In fact, Detective Cope brought his own copy of the DIBRS report to his deposition and confirmed on the record that the exhibit provided by Plaintiff’s counsel was “identical” to the document he obtained from the Dayton Police Department’s reporting system. See Cope Dep. at 8:10-9:5. Defendants object to paragraph 54 of the Naylor MSJ Affidavit as containing “hearsay assertions and interpretations and argument concerning certain truck log records.” Br. at 3. Notably, Defendants do not object to the truck logs themselves, but to Plaintiff’s counsel’s description of the truck logs. But the descriptions were provided for the Court’s benefit and simply explain why the records are significant. It is the records themselves that are the evidence, rendering Defendant’s objection irrelevant. Exhibits 59 and 66 are emails that constitute statements by Kumpf or his agents and are therefore not hearsay pursuant to Evid.R. 801(D)(2). For example, Exhibit 59 consists of an email sent from the ARC email address that discusses the operations of ARC. See Metro-Goldwyn-Mayer Studios v. Grokster, Ltd., 454 F.Supp.2d 966, 973-74 (C.D. Cal. 2006) (emails from company email address, emails from employees, and emails from independent contractors all admissible under Rule 801(d)(2)(D)). Similarly, Exhibit 66 is an email from an animal control officer discussing her investigation into a dog complaint. Exhibits 68 and 71 are also emails that are admissible pursuant to Evid.R. 803(6) and Evid. R. 803(8). Exhibit 76 is the 2018 Report on ARC’s operations under Mark Kumpf’s helm. While Defendants argue it is “irrelevant and does not pertain to the time period at issue,” that is not a legitimate basis for a motion to strike. See Foley v. City of Lowell Mass., 948 F.2d 10, 14 (1st Cir. 1991) (“Contrary to the City’s exhortation that the date an incident occurs marks the outside date for evidence-gathering on such an issue, we think that actions taken subsequent to an event are admissible if, and to the extent that, they provide reliable insight into the policy in force at the time of the incident.”). Defendants argue that the report should be stricken because it is a “hearsay publication” and “constitutes a subsequent remedial measure.” Br. at 4. First of all, the report is a public record pursuant to Evid.R. 803(8). See Swoope v. Osagle, 76 N.E.3d 686, 2016-Ohio-8046, ¶20 (8th Dist.) (investigative report issued by county board into alleged neglect of disabled persons properly admitted as public record under Evid.R. 803(8)); Coyett v. City of Philadelphia, 150 F.Supp.3d 479, 482 n.5 (“It is proper to use this report [issued by department of justice regarding defendant city’s police training and practices] as evidence when deciding this summary judgment motion, as it is a public record pursuant to Fed. R. Evid. 803(8)(a)(iii). Further, the use of the report as evidence is precluded neither by Fed. R. Evid. 407 or public policy. The report is not a ‘subsequent remedial measure’ as articulated in Rule 407.”). Moreover, Defendants fail to explain why the portions of the report cited by Plaintiff are “subsequent remedial measure[s].” Courts recognize that just because an investigation is conducted after an incident does not render the resulting report a “subsequent remedial measure.” See, e.g., Aranda v. City of McMinnville, 942 F.Supp.2d 1096, 1103 (D. Ore. 2013) (“By its very terms, this rule is limited to measures that would have made the harm less likely to occur; it does not extend to post-accident investigations into what did occur…. Although such reports or inspections might represent the first or most preliminary steps that might eventually lead to decisions to make or implement changes, they are not themselves excluded under Rule 407” (citing Christopher Mueller & Laird Kirkpatrick, 2 FEDERAL EVIDENCE §4.50, at 77 (3d ed. 2007)). 9 Notably, although the report was prepared by Team Shelter USA, LLC at the request of the county and although the county is a defendant in this action for purposes of Plaintiff’s public record and spoliation claims, the county is not a defendant for purposes of the wrongful death 9 See also Prentiss & Carlisle v. Kohring-Waterous, 972 F.2d 6, 10 (1st Cir. 1992) (explaining that although post- incident reports “may often result in remedial measures being taken (as occurred here) [Rule 407] does not mean that evidence of the analysis may not be admitted”); Westmoreland v. CBS, 601 F.Supp. 66, 68 (S.D.N.Y. 1984) (“To establish a rule forbidding … use [of internal investigative reports] would deprive injured claimant on of the best and most accurate sources of evidence and information.”) claim for which the report is relevant and being offered. See, e.g., Rivera v. Lehigh County, 2015 WL 7756193, at *8 (E.D. Pa. Dec. 2, 2015) (“There is no basis in law to preclude measures taken by a non-party…. The admission of remedial measures by a non-party necessarily will not expose that non-party to liability, and therefore will not discourage the non-party from taking the remedial measures in the first place. It is noteworthy that each of the circuits to address this issue has concluded that Rule 407 does not apply to subsequent remedial measures taken by a non-party.”); McFarland v. Bruno Mach. Corp., 68 Ohio St.3d 305, 309 (1994) (noting that “policy considerations behind excluding evidence of subsequent remedial conduct are not applicable when liability is not asserted against the person taking the remedial measure”). Moreover, even if the report could be construed as a subsequent remedial measure, it would still be admissible for purposes other than to prove Kumpf’s negligence, such as to establish Kumpf’s control of ARC operations, to impeach Defendants’ testimony, and to demonstrate feasibility of reforms. See Evid.R. 407. In any event, under Evid.R. 201, a court may take judicial notice of an adjudicative fact that is “not subject to reasonable dispute in that it is … (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” See Hendy, 2011-Ohio-1900, ¶ 20 (public records posted on government websites subject to judicial notice). Finally, Defendants object to the history of Defendants’ failure to produce the truck logs in this case as recounted in the Naylor MSJ Affidavit at ¶¶90, 93, 98, and 99. Each of these paragraphs recounts statements and/or admissions by agents of Defendant Kumpf and are therefore not hearsay pursuant to Evid.R. 801(D)(2). CONCLUSION For the foregoing reasons, Defendants’ motion should be denied in its entirety. Respectfully submitted, /s/ Todd B. Naylor Jeffrey S. Goldenberg (0063771) Todd B. Naylor (0068388) GOLDENBERG SCHNEIDER, LPA One West Fourth Street, 18th Floor Cincinnati, Ohio 45202 Tel: (513) 345-8291 Fax: (513) 345-8294 jgoldenberg@gs-legal.com tnaylor@gs-legal.com David M. Gast (0070082) Christian A. Jenkins (0070674) MINNILLO & JENKINS CO., LPA 2712 Observatory Avenue Cincinnati, Ohio 45208 Tel: (513) 723-1600 Fax: (513) 448-0735 dgast@minnillojenkins.com cjenkins@minnillojenkins.com Trial Attorneys for Plaintiff CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing was filed electronically in accordance with this Court’s electronic filing guidelines on July 16, 2019. Notice of this filing will be sent to all parties by operation of this Court’s electronic filing system or will be served by ordinary U.S. mail, postage prepaid, pursuant to applicable Montgomery County Local Rules, upon counsel or parties who are not sent electronic notification. Parties may access this filing through the Court’s electronic filing system. /s/Todd B. Naylor Todd B. Naylor